Abiodun Adelaja & Ors. V. Yesufu Alade & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The plaintiffs, herein referred to as appellants, claimed jointly and severally against the defendants, herein referred to as respondents, in paragraph 19 of the amended statement of claim as follows:-

“1. Declaration of title to a statutory right of occupancy under the provision of Decree No.6 of 1978 in respect of all that piece or parcel of land lying, being and situate at Tabontabon village, off Ring Road, Ibadan, as per the plan No.FA/M/32A drawn by licensed surveyor A.O. Adebogun dated 16/11/79.

2. N200.00 general damages for a continuing trespass commenced since the month of June, 1977 by the defendants, their agents and/or servants on the said landed property in Ibadan.
3. Injunction restraining the defendants, their agents, servants, privies and all those claiming through the defendants from committing further acts of trespass on or in any other way interfering with plaintiffs’ ownership and/or possession of the said landed property.”

It is necessary to draw attention to the fact that by the ruling of this court dated the 17th of June, 1994, appellants were granted leave to amend paragraph 19(1) of their amended statement of claim to reads as follows:

“19(1) Declaration of title to a statutory right of occupancy under the provision of Decree 6 of 1978 in respect of all that piece or parcel of land particularly plots 28 and 29 property of Kola Ayodele suing by his attorney, the third plaintiff, plot 32 property of first plaintiff and plot 33 property of second plaintiff, all within Alade Layout, lying, being and situate at Tabontabon village, off Ring Road. Ibadan verged black as per the plan No. FA/M/32A drawn by licensed surveyor A.O. Adebogun dated 16/11/79.”

The plaintiffs’ case as portrayed in their amended statement of claim was that sometime in 1957, the Alade family established a layout of plots for sale of their family land at Tabontabon village near Ring Road, Ibadan. The family head and representatives were Adebayo Alade. Adetohun Alade (deceased) and Yesufu Alade (first defendant). The first plaintiff, Abiodun Adelaja bought six plots in the layout. i.e. plots Nos.20,21.24, 25. 32 and 37 and was evidenced by a sale agreement dated 23/3/58 and a conveyance registered as No.53/53/259 of 16/6/58.

The 2nd plaintiff, Abiodun Oyetubo bought plot No.33 as witnessed by a deed of conveyance registered as No.48/48/353 and dated 4/12/59 while the 3rd plaintiff. Kola Ayodele bought four plots, i.e. plots Nos. 16,17,28 and 29 as also witnessed by a deed of conveyance registered as 16/16/254 of 16/5/58. The eleven plots bought by the plaintiffs are as shown “in survey plan FNM132A dated 21/1/78 prepared by A.O. Adebogun, a licensed surveyor.

The plaintiffs have been put in possession and exercised acts of ownership on the land until 30/5/77 when 1st plaintiff saw 2nd defendant and two workmen constructing a building foundation on the land. The said building construction not only obstructed the proposed road within the Alade family layout but protruded at various places into plot No. 32, plot No. 33 and plot Nos. 28 & 29 which are the respective properties of 1st, 2nd and 3rd plaintiffs. These interferences on the plaintiffs’ plots of land triggered off this action.

In their statement of defence, the first defendant denied being a party to the execution of the documents of title pleaded by the plaintiffs, and except that he admits selling two plots of land to the 1st plaintiff but also denies that he trespassed on both plots. The second defendant denied liability as he was a workman of the 1st defendant. The defence also stated that the plaintiffs plan included areas of land already litigated upon in Adelaja (as attorney for Victor Oludemi) against Olatunde Fanoiki and Yesufu Alade, suit No. 1/147/75, which suit was dismissed. It was also the defence case that the plaintiffs’ plan included land not sold to them. It was also averred that the 3rd plaintiff was guilty of laches and acquiescence. Finally, the defence averred that the 1st and 2nd plaintiffs’ claims to plots 32 and 33 were dismissed in suit No. 1/402/77. A. Adelaja & anor Yesufu Alade & anor on 16/10/78 and consequently, in respect to these two plots, they rely on the plea of res judicata.

In the plaintiffs’ amended reply to statement of defence they averred that the dismissal of suit No. 1/402/77 was not on its merits and therefore could not support a plea of res judicata.

After due trial, the trial Judge, at p.60 of the record made the following findings of fact:

”The area allegedly trespassed upon and the cause of dispute in the present action is the area verged black in Exhibit ‘K’. The building which has been erected on the said area touches slightly plot 32 in the area verged green in Exhibit ‘K’, claimed by the 1st plaintiff. It also touches plot 33 in the area verged blue in Exhibit ‘K’ claimed by the 2nd plaintiff. And so does it abutt (sic) on plots 28 and 29 in the area verged yellow in Exhibit ‘K’ claimed by the 3rd plaintiff.”

Thereafter, judgment was entered in favour of the first and second plaintiffs on their declaration as sought but their claims for trespass and injunction were dismissed, whilst the case of the third plaintiff was dismissed in its entirety.

On appeal by both parties against the judgment of the High Court, the Court of Appeal unanimously held that 1st and 2nd appellants did not prove their title to the land in dispute, The court further held that the appellants never proved that the parcels of land in dispute were within the Alade Layout, plan which they pleaded, and in the result, an order of non-suit was entered against the three appellants. Their appeal on trespass and injunction was dismissed. The cross-appeal of the respondents succeeded as the judgment of the High Court in favour of the 1st and 2nd appellants was set aside. In the final result, the appeal succeeded in part and the cross-appeal also succeeded partially.